Hitchens v. Doll

Filing 36

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar DENYING 29 Defendant's Motion for Summary Judgment, and DISMISSING without prejudice Defendant's counterclaim for revocation of inheritance. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CYNTHIA HITCHENS,
Plaintiff,
v.

No. 16-cv-0576 SMV/KK

NANCY DOLL,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Defendant’s Motion for Summary Judgment or, in
the Alternative, Dismissal with Prejudice [Doc. 29], filed on October 28, 2016.
responded on November 17, 2016.

[Doc. 30].

Plaintiff

Defendant replied on December 1, 2016.

[Doc. 31]. The Court heard oral argument on January 23, 2017. [Doc. 35]. Having considered
the briefing, oral argument, relevant law, and being fully advised in the premises, the Court will
deny the motion and dismiss the counterclaim for revocation of inheritance for lack of
jurisdiction.
Background
This is a sad case.

Plaintiff and Defendant are sisters and the only children of

Ms. Evelyn Doll, who passed away on March 11, 2014. The women spent their mother’s final
years fighting over their anticipated inheritances. They continue that fight today.
Plaintiff alleges that the mother executed a Power of Attorney in favor of Defendant on
July 19, 2011.

[Doc. 4] at 2.

Immediately (and perhaps even before), Defendant began

liquidating the mother’s assets, retitling her real property, and taking other steps to benefit

herself. Id. at 4. Plaintiff alleges that their mother began having seizures, was diagnosed with
dementia, and was hospitalized in November and December of 2012. Id. During this time, the
mother revoked the Power of Attorney for Defendant and signed one for Plaintiff instead. Then,
in January of 2013, the mother moved to California to be near Plaintiff. Id. at 5. In May of
2013, the mother executed an estate plan that designated Plaintiff as the beneficiary and
“disinherited Defendant for her ‘fraudulent’ actions.” Id. On May 16, 2013, the mother (with
counsel) filed a lawsuit in federal court in California against Defendant and others, alleging that
they had conspired to steal money, property, and assets from her. Id. (Plaintiff was not named
as a party to that lawsuit.)
In June of 2013, Defendant traveled to California and picked up the mother from an
assisted living facility and transported her back to New Mexico. The mother then signed another
Power of Attorney for Defendant, which Defendant used to continue to liquidate the mother’s
assets. Id. at 6. On November 19, 2013, the mother, Plaintiff, and Defendant entered into a
Settlement Agreement to resolve the lawsuit (even though Plaintiff had not been named in it) and
any disputes among them related to the lawsuit.

The Settlement Agreement provided, in

pertinent part, that the mother would immediately execute a “New Estate Plan” (consisting of a
will alone or a will combined with a revocable trust) naming her two daughters (Plaintiff and
Defendant) as her “primary beneficiaries in equal shares.” [Doc. 9] at 9. The Agreement further
provided that “all current and future assets held by [the mother] shall be distributed through the
New Estate Plan.” Id. Finally, the mother agreed not to revoke or amend the New Estate Plan
unless she and both daughters agreed to the change in writing. Id.
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On the same day that the three signed the Settlement Agreement, the mother signed a
will. As contemplated by the Settlement Agreement, the will named the sisters as the sole heirs
taking in equal shares. Id. The will also contained a “No Contest Clause,” which prohibited the
heirs from contesting the will. It read:
If any person who is a legatee or devisee or beneficiary
shall, directly or indirectly contest or dispute the probate of this
Will, or maintain before any judicial body that this is not my Last
Will and Testament or call into question before any tribunal the
provisions of any legacy, devise, or provision herein, or claim to be
a child or heir of mine and establish such claim in a court of
competent jurisdiction, then I absolutely revoke the legacy, devise,
or provision for such person and declare the same void and of no
effect, and the remaining provisions hereof shall be carried into
effect, disregarding those for such person, and the portions for such
other legatees, devisees or beneficiaries shall be increased
proportionately. To any other person, directly or indirectly
contesting or otherwise questioning my Will or claiming to be an
heir in the manner described in the preceding sentence, I bequeath
the sum of One Dollar.
Id. at 17.
The mother passed away on March 11, 2014, less than four months after she signed the
Settlement Agreement and will. [Doc. 4] at 7. Defendant initiated probate proceedings in a
New Mexico state court on June 9, 2014. See [Doc. 9] at 4; In re Evelyn C. Doll, case number
D-202-PB-201400282. On or around August 22, 2014, Defendant “quitclaimed” a piece of real
estate that had belonged to the mother to Plaintiff; it is unclear whether this transfer occurred as
part of the probate proceedings or whether it was transferred outside probate. [Doc. 4] at 7; see
[Doc. 31] at 2 (Defendant’s reply, alleging that Defendant distributed the estate, which consisted
of two pieces of real estate in Silver City, “signing the most valuable and profitable property
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over to Plaintiff”). In October of 2014, Plaintiff requested an accounting of the mother’s assets,
but Defendant did not provide the accounting. [Doc. 4] at 8.
Plaintiff filed suit in this Court on June 14, 2016. [Doc. 1]. She amended her complaint
on June 20, 2016. [Doc. 4]. The Amended Complaint alleges that Defendant had been taking
advantage of the mother’s “diminished mental and physical capacity” since 2011, in order to take
control of assets and money to benefit herself, to the detriment of Plaintiff’s anticipated
inheritance. Id. at 9, ¶ 70. Plaintiff alleges that Defendant violated the Settlement Agreement by
distributing the mother’s assets outside the New Estate Plan (i.e., the will) in several ways. For
example, she alleges that Defendant: transferred (or directed the mother to transfer) the mother’s
assets and/or changed the beneficiary designations, id. at 9, ¶ 73; unduly influenced the mother to
make inter vivos transfers of property and assets, id. at 10, ¶ 76; filed transfer-on-death deeds for
the mother’s real property, id. at 12, ¶ 94; improperly handled money received from liquidation
of stocks, including self-dealing of such monies, id. at 13, ¶ 95; lied to her about their mother’s
assets and properties and lied about how she was handling such assets and properties, id. at 14,
¶ 110; and transferred and liquidated stocks, assets, and properties outside the New Estate Plan,
id. at 16, ¶ 124.
Based on these and other facts, the Amended Complaint lists ten counts. However, three
are requests for relief, rather than causes of action. See id. at 8–11. The remaining seven counts
are for: violation of the Uniform Power of Attorney Act and breach of fiduciary duties
(Count IV); breach of contract, i.e., the Settlement Agreement (Count V); conversion

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(Count VI); fraud (Count VII); fraudulent misrepresentation (Count VIII); conspiracy to commit
fraud (Count IX); and unjust enrichment (Count X). Id. at 11–17.
Defendant answered on August 10, 2016. [Doc. 9]. She contests Plaintiff’s assertion of
diversity jurisdiction. Id. at 2. She argues that the Settlement Agreement precludes this Court’s
jurisdiction, and she asserts counterclaims to enforce the Settlement Agreement and to revoke
Plaintiff’s share of the estate. Id. at 3–6.
Plaintiff answered the counterclaims on August 31, 2016. [Doc. 15]. She argues that the
Settlement Agreement does not preclude this Court’s jurisdiction. Id. at 6. Additionally, she
argues that to the extent any of the counterclaims require the Court to enforce the mother’s will
or administer her estate, such counterclaims are barred by the probate exception to federal court
jurisdiction. Id. at 3, 9 (citing Marshall v. Marshall, 547 U.S. 293 (2006)).
Analysis
On October 28, 2016, Defendant filed her Motion for Summary Judgment or, in the
Alternative, Dismissal with Prejudice. [Doc. 29]. The Court addresses the points raised in the
motion in order of analytical convenience. First, Plaintiff agrees with Defendant that no claim
arising before November 19, 2013, may be brought in this action because all such claims were
already litigated, and resolved, in the California action. No such claim is at issue in this lawsuit.
Therefore, the motion will be denied as moot with respect to claims arising before November 19,
2013. Second, Defendant fails to meet her burden as the movant to show that Plaintiff’s other
claims—those arising on or after November 19, 2013—fail to state a claim. The motion will be
denied with respect to the claims arising on or after November 19, 2013. Third, Plaintiff has
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sufficiently shown that it is not legally certain that she will not recover more than $75,000.
Thus, the motion will be denied with respect to the amount-in-controversy argument. Fourth, the
motion will be denied as to Defendant’s counterclaim to enforce the will’s no-contest clause, and
furthermore, the Court will dismiss the counterclaim for lack of jurisdiction under the probate
exception. Fifth, Defendant’s requests for sanctions will be denied.
I. Defendant’s Motion for Summary Judgment regarding
claims arising before November 19, 2013, is moot because no such claim is asserted.
Defendant moves for summary judgment on all claims that were raised in the California
case and disposed of by the November 19, 2013 Settlement Agreement. [Doc. 29] at 3–6. But
Plaintiff explains that she is not attempting to bring any of the claims resolved by the
November 19, 2013 Settlement Agreement.

[Doc. 30] at 14.

While she included in her

Amended Complaint many of the same factual allegations that were asserted in the California
case “as background information,” Plaintiff has made clear, in her briefing and at oral argument,
that she is bringing claims against Defendant only for actions that occurred after the Settlement
Agreement was executed.

Id. at 14, 15.

In brief, she claims that Defendant violated the

Settlement Agreement by distributing their mother’s assets outside the New Estate Plan. Id.
at 13–18. There really is no dispute; Plaintiff brings claims only for actions occurring on or after
November 19, 2013. Accordingly, Defendant’s motion for summary judgment on the claims
arising before November 19, 2013, will be denied as moot.

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II. Defendant fails to show that the claims
arising on or after November 19, 2013, should be dismissed.
Defendant moves to dismiss “the remainder” of the Amended Complaint—that is, the
claims arising on or after November 19, 2013—for failure to state a claim. [Doc. 29] at 7;
[Doc. 31] at 6. A motion to dismiss for failure to state a claim is governed by Rule 12(b)(6) of
the Federal Rules of Civil Procedure, although Defendant fails to cite the Rule in her motion.
Indeed, Defendant cites no legal authorities whatsoever, nor does she cite to any portion of the
Amended Complaint. [Doc. 29] at 7; [Doc. 31] at 6. The Amended Complaint alleges that after
the Settlement Agreement was executed, Defendant violated it by distributing (or improperly
directing the mother to distribute) assets outside the New Estate Plan. Specifically, it alleges that
Defendant (directly or through the mother) changed beneficiary designations, transferred assets,
filed transfer-on-death deeds for real property, and improperly handled monies from liquidated
stocks. [Doc. 4] at 9, 10, 12–14, 16. In deciding a motion to dismiss, the Court “must accept all
the well-pleaded allegations . . . as true and must construe them in the light most favorable to the
plaintiff.” Thomas v. Kaven, 765 F.3d 1183, 1190 (10th Cir. 2014). As the movant, Defendant
bears the burden of showing that the alleged facts, even if true, would not sustain Plaintiff’s
claims. She has not done so. The Court cannot do it for her. The motion to dismiss will be
denied.
III. Plaintiff sufficiently shows that more than $75,000 is in controversy.
Defendant argues that Plaintiff has failed to establish the requisite jurisdictional amount
of more than $75,000. Defendant’s argument is based on the premise that all of the claims raised
in the Amended Complaint are barred by the Settlement Agreement. See [Doc. 29] at 8 (“The
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entirety of Plaintiff’s claims which refer to jurisdictional dollar amounts refer only to dates and
actions that were settled in the Settlement Agreement.”); see also [Doc. 9] at 2, ¶ 3 (Defendant’s
answer denying Plaintiff’s allegation that the Court has diversity jurisdiction). In other words,
since all of Plaintiff’s claims are barred, there cannot possibly be more than $75,000 in
controversy.
In response, Plaintiff argues that (1) the Amended Complaint alleges that the amount in
controversy exceeds $75,000, and (2) her factual allegations support that amount. [Doc. 30]
at 20 (citing [Doc. 4] at 2, ¶ 7). Additionally, she points to the Amended Joint Status Report and
Provisional Discovery Plan (“Amended JSR”) and her Amended Initial Disclosures, both of
which provide specific factual support for the amount in controversy. [Doc. 30] at 20 (citing
[Doc. 25] at 10–16; [Doc. 30-6] at 6–9). For example, she lists various assets that she believes
Defendant distributed outside the New Estate Plan and in violation of the Settlement Agreement,
and she includes her estimate of what she should have received pursuant to the Settlement
Agreement (had those assets been distributed via the New Estate Plan), e.g., real property located
at 32nd street in Silver City, New Mexico ($85,000); a triplex, also in Silver City, New Mexico
($4,500); AT&T stock ($133,601.85); Verizon stock ($32,124.36); other Verizon stock
($563.99); Tenneco stock ($1,209.80); and other Tenneco stock ($1,302.80). [Doc. 25] at 10–16;
[Doc. 30-6] at 6–9.
In reply, Defendant argues, “Plaintiff has no idea about the value of her claims, nor—
more importantly—any way to prove any claims which might somehow be outside the terms of
the Settlement Agreement.” [Doc. 31] at 5–6 (citing [Doc. 30] at 17). This argument is based on
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the fact that there was no accounting of the mother’s property, either at the time the Settlement
Agreement was executed or at her death. Id. Defendant does not address the specific assets
listed in the Amended JSR, nor Plaintiff’s allegation that she is entitled to “at least $258,302.80”
for assets that Defendant allegedly distributed outside the New Estate Plan and in violation of the
Settlement Agreement. Id.; [Doc. 25] at 16 (emphasis omitted).
Subject matter jurisdiction under 28 U.S.C. § 1332(a) requires diversity of citizenship
between the parties and an amount in controversy that exceeds “$75,000, exclusive of interest
and costs.” McPhail v. Deere & Co., 529 F.3d 947, 952 (10th Cir. 2008) (quoting 28 U.S.C.
§ 1332(a)). “Although allegations in the complaint need not be specific or technical in nature,
sufficient facts must be alleged to convince the district court that recoverable damages will bear
a reasonable relation to the minimum jurisdictional floor.” Marcus Food Co. v. DiPanfilo, 671
F.3d 1159, 1171 (10th Cir. 2011) (internal quotation marks omitted).
If the defendant challenges the amount in controversy, the plaintiff has the burden to
show “that it is not legally certain that the claim is less than the jurisdictional amount.” Mocek v.
City of Albuquerque, 813 F.3d 912, 934–35 (10th Cir. 2015) (quoting Woodmen of the World
Life Ins. Soc’y v. Manganaro, 342 F.3d 1213, 1216 (10th Cir. 2003)).
The legal certainty standard is very strict. As a result, it is
difficult for a dismissal to be premised on the basis that the
requisite jurisdictional amount is not satisfied. There is a strong
presumption favoring the amount alleged by the plaintiff.
Generally, dismissal under the legal certainty standard will be
warranted only when a contract limits the possible recovery, when
the law limits the amount recoverable, or when there is an obvious
abuse of federal court jurisdiction.

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Woodmen of the World, 342 F.3d at 1216-17 (internal citation omitted). The plaintiff may meet
her burden by supplementing the allegations in the complaint with “other documentation.”
McPhail, 529 F.3d at 956. For example, she may point to answers to interrogatories, affidavits,
or “other evidence.” Id. at 956–57. “[D]ocuments that demonstrate plaintiff’s own estimation of
[her] claim are a proper means of supporting the [amount in controversy], even though they
cannot be used to support the ultimate amount of liability.” Id. In other words, when deciding a
challenge to the amount in controversy, a court may consider certain materials regardless of
whether those materials would be admissible at trial. Id. In McPhail, the Tenth Circuit Court of
Appeals expressly held that emails and letters memorializing counsel’s “settlement discussions”
were sufficient to support the amount in controversy even though they would not be admissible
at trial. Id. at 957.
Here, Plaintiff affirmatively alleges that more than $75,000 is in controversy. [Doc. 4]
at 2. She also points to the factual allegations made in her Amended Initial Disclosures and the
Amended JSR. These documents are not unlike the settlement communications in McPhail;
neither would be admissible at trial, but both are relevant to the amount-in-controversy
determination. The factual allegations in the Amended Complaint are reasonably related to a
potential recovery of more than $75,000. See [Doc. 4] at 9–10, 12–14, 16. Moreover, Plaintiff’s
Amended Initial Disclosures and the Amended JSR are sufficient to meet her burden. See
[Doc. 25], [Doc. 30-6] at 6–9. It is not legally certain that Plaintiff cannot recover more than
$75,000. The motion will be denied.

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IV. Defendant’s counterclaim for revocation
of inheritance is barred by the probate exception.
Defendant moves for summary judgment on her own counterclaim for revocation of
Plaintiff’s inheritance. [Doc. 29] at 6–7; see [Doc. 9] at 5. Defendant’s counterclaim is based on
filings in the probate matter.1 [Doc. 29] at 6–7; see [Doc. 9] at 5. The parties agree that Plaintiff
filed a “Verified Petition to Remove Nancy Doll as Personal Representative . . .” which was later
withdrawn. See [Doc. 30-4] at 8 (copy of the Verified Petition). They disagree about the legal
effect of these filings. Defendant argues that the filing of the Verified Petition triggered the
no-contest clause of the will, and that Plaintiff’s share of the estate should therefore be revoked.
See [Doc. 9] at 5 (Defendant’s counterclaim for revocation of inheritance); [Doc. 29] at 6–7
(Defendant’s motion for summary judgment on the counterclaim); [Doc. 31] (Defendant’s reply
to her motion). Plaintiff disagrees, arguing that the counterclaim is barred by the probate
exception to federal court jurisdiction. [Doc. 15] at 6–7 (Plaintiff’s answer to Defendant’s
counterclaim for revocation of inheritance); id. at 8–9 (Plaintiff’s argument that the counterclaim
is barred by Marshall, 547 U.S. 293); [Doc. 30] at 18–20 (Plaintiff’s response to Defendant’s
motion for summary judgment on the counterclaim).
The probate exception to federal jurisdiction is a long-standing, judicially created
doctrine that precludes federal courts from assuming jurisdiction over state probate claims.
Marshall, 547 U.S. at 299. Federal courts retain jurisdiction over a probate-related claim, unless
it requires the court to (1) probate or annul a will, (2) administer a decedent’s estate, or
(3) “dispose of property that is in the custody of a state probate court.” Id. at 311–12. The
1

At oral argument, defense counsel expressly confirmed that the counterclaim for revocation of inheritance was
based on a filing in the probate court. Oral Argument held on January 23, 2017, at 9:38, 9:40.

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probate exception reserves these—and only these—purely probate matters to the exclusive
jurisdiction of the state courts. Id.
Courts have interpreted the first two prohibitions set forth in
Marshall, that federal courts cannot “probate or annul a will” or
“administer a decedent’s estate” to mean that federal courts do not
have jurisdiction “over any claims for relief or theories of recovery
that require a determination concerning the validity and/or
construction of a testamentary document.”
Parks v. Kiewel, No. 6-15-1196-JTM-GEB, 2015 U.S. Dist. LEXIS 155979, at *13 (D. Kan.
Nov. 18, 2015) (unpublished) (emphasis added) (quoting Grey v. Johansson, No. 13-7497, 2014
U.S. Dist. LEXIS 119223, at *12–13 (D.N.J. Aug. 26, 2014) (unpublished)).
The Court determines that Defendant’s counterclaim for revocation of Plaintiff’s
inheritance under the will’s no-contest clause would require the Court to interpret, apply, and
enforce a testamentary document, i.e., the mother’s will. To do so would be beyond this Court’s
jurisdiction. See Marshall, 547 U.S. at 311–12 (distilling the probate exception); Vaughan v.
Montague, 924 F. Supp. 2d 1256, 1268–69 (W.D. Wash. 2013) (holding that a counterclaim
arising from an alleged breach of a trust agreement’s no-contest clause was barred by the probate
exception).

The motion for summary judgment on the counterclaim will be denied.

Furthermore, the Court will dismiss the counterclaim for lack of jurisdiction.
V. Defendant’s requests for sanctions will be denied.
Defendant argues that Plaintiff violated the Settlement Agreement by filing this suit.
[Doc. 29] at 8. Specifically, she argues that Plaintiff is attempting to re-litigate claims that arose
before, and thus were resolved by, the Settlement Agreement. Id. Defendant asks for dismissal
with prejudice, costs, and attorney’s fees as sanctions “for Plaintiff’s bringing this action in
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violation of the Settlement Agreement.” Id. However, it is clear that Plaintiff is asserting no
claim that arose before the execution of the Settlement Agreement. This suit, therefore, does not
violate the Settlement Agreement. Defendant’s request for sanctions for filing the lawsuit is
without merit and will be denied.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendant’s
Motion for Summary Judgment or, in the Alternative, Dismissal with Prejudice [Doc. 29] is
DENIED in its entirety. Defendant’s counterclaim for revocation of inheritance is DISMISSED
without prejudice for lack of jurisdiction.
IT IS SO ORDERED.

_____________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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